William Merideth had just finished grilling dinner for his family when he saw a drone hovering over his land. So he did what he said any Kentuckian might do — he grabbed his Benelli M1 Super 90 shotgun, took aim and unleashed three rounds of birdshot.

Read the whole thing, because as semi-amusing as the situation is (“Look, it’s a drone! Let me get my shotgun!”), there is a serious property rights angle to the story. Let’s get into it.

Can You Shoot Down a Drone Over Your Own Backyard?

Let’s just assume that there are no laws against discharging a firearm within city limits, or within the HOA, or whatever. Like Merideth, maybe you live on a farm far enough away from any such laws/regulations.

You come out into your backyard (your very large backyard) and see a drone hovering about 50 feet in the air. Can you shoot it down?

On the one hand, it seems obvious that you should be able to. It’s your property, the drone is intruding on it, you don’t know what it’s doing there, and you should have every right to take your shotgun and play skeet/trap.

On the other hand, well, there’s this pissed off drone owner who just saw his expensive toy (some drones are in the thousands of dollars) get blown to smithereens. In this case, it’s a Mr. John Boggs, who sued Merideth for becoming Drone Commander (without the huge beard). But the grounds for his lawsuit is what is so interesting:

John Boggs, a hobbyist, who told authorities he was trying to take pictures of the scenery. He argues in a lawsuit filed this month in U.S. District Court in Louisville that Merideth did not have the right to shoot the craft down because the government controls every inch of airspace in America. [Emphasis mine]

Hey there! What’s that now? So here’s the property rights issue charging into the situation like a Predator drone on crack.

Airspace Property Rights

It turns out, the law is really murky in this area. Washington Post again:

According to the Federal Aviation Administration, every inch above the tip of your grass blades is the government’s jurisdiction. “The FAA is responsible for the safety and management of U.S. airspace from the ground up,” said an agency spokesman, echoing rules laid out on its website.

But common law long held that landowners’ rights went “all the way to Heaven.” And today, it’s clear that they have some rights.

Common law, that Anglo-American tradition of long-held community wisdom, kinda fits with common sense (which is in rather short supply these days, true, but…) in that it arises out of human experience over years and years.

For example, as WaPo points out, developers in big cities like New York routinely sell air rights above their building for millions of dollars. And if your neighbor’s tree grows over your backyard, you can cut down the offending limb. One imagines that if your neighbor erected a giant billboard that hangs over your backyard, you probably could sue to get that crap removed.

The FAA’s claim, that it has jurisdiction over the airspace “from the ground up” is absurd and definitely demolishes private property rights. In theory, if the FAA’s claim is correct, it could regulate how I walk around my backyard, since my nose is way above ground level. Well, by “way above” I mean between 5 and 6 feet off the ground, depending on the size of the heels on my boots, and whether I’m on a pogo stick or not. But it is clearly in federal airspace.

Similarly, if I put up a trampoline, I’m most definitely intruding into federal airspace. Or a clothesline. Or a backyard volleyball net.

That simply cannot be the rule. Some amount of airspace above the ground, which I own, has to be mine. I have to have private property rights to it.

At the same time, common law is surely wrong in our technological age as well. “All the way to Heaven” doesn’t work when commercial airplanes are flying 30,000 feet overhead, and cellphone signals are infusing the sky over my house. Nobody is going to let me build a laser fence that extends infinitely into the sky burning down everything that crosses my property lines. (Although if they would… hmm….)

NAR and REALTORS Should Be All Over This

Because of that property rights angle, I think NAR and REALTORS should be all over this issue. NAR has been dealing with the issue of drones for a couple of years now, but all of it is from the perspective of REALTORS using drones to take aerial photography of properties. Take a look for yourself.

But with the Merideth case, and the FAA’s surprising claim that it pretty much owns the airspace from the ground up, I think it’s time for REALTORS to get engaged on that side of the issue. First and foremost, NAR probably should weigh in on the FAA declaration and smack that down. The FAA cannot be allowed to assert jurisdiction over airspace “from the ground up” as that kills private property rights.

But second, and more interestingly, the industry should come up with some proposals for delineating where private property airspace ends, and provide some answers for a few of the related questions as well. For example:

Just how much of the airspace above a property do I get when I purchase it? 100 feet? 200?

Where does that airspace start? Is it at the highest point of the roof? Is it at the highest point of the property? (Think chimneys, TV antennas and the like)

If I built a single story house that happened to have a 200-feet flagpole on the roof, where does airspace begin?

Does airspace-as-private-property imply that there are limits to how tall a building may be built without FAA approval? Large cities with their skyscrapers probably have local ordinances that deal with such issues, but what about a farmer who wants to build a very tall silo? What then?

Can that airspace be bought and sold? So if I don’t want my neighbors building over two stories, because I plan on building a four story mansion with commanding views of the subdivision, could I buy their airspace above say 25-feet?

If I sold the airspace above my house past that 25-feet line, how much would that reduce the value of my house?

Could there be adverse possession of airspace?

I know, it seems silly on the one hand. But fun as hell to come up with questions and scenarios. I invite you all, the most informed readers in real estate, to submit your own.

But on the other hand, this is serious business. It does impact private property rights, which is (supposedly) the single biggest issue for NAR. It is why REALTORS are REALTORS, instead of just licensees. You know, the Preamble to the Code of Ethics and all that.

Speaking of the Preamble, should it be changed to start “Under all is the land and 200-feet of airspace above it…?”

Managing Partner of 7DS Associates, and the grand poobah of this here blog. Once called "a revolutionary in a really nice suit", people often wonder what I do for a living because I have the temerity to not talk about my clients and my work for clients. Suffice to say that I do strategy work for some of the largest organizations and companies in real estate, as well as some of the smallest startups and agent teams, but usually only on projects that interest me with big implications for reforming this wonderful, crazy, lovable yet frustrating real estate industry of ours.

16 Comments

Join the discussion and state your opinion. Some comments may be held in moderation. I try to get to them as soon as possible, but may be traveling or unable to approve comments immediately. I do not censor comments, but reserve the right to remove anything that looks like spam, trolling, or just outright inappropriate.

Yep. Long settled in case law. An aviation law expert can answer all these questions and cite this. Hence we do not get paid when a plane flies overhead and the requirement now that all drones over 250 grams at takeoff (with battery), about 1/2 a pound. This catches all but the smallest drones, and extends the law to cover their activity. Also applies to both a commercially operated or hobby drones.
But, in response to the request for a question, what about the ownership rights and compensation for a photo taken by a drone that includes other property when it is published, and what may be viewed in the (formerly) private space of an adjacent owner?

If a UAV is hovering outside your window like a peeping Tom, that would appear to be a privacy violation. At Rob’s house (and others) the drone will be destroyed or incapacitated by weighted netting deployed from a shotgun shell.

Most other aerial photos aren’t considered private, ask Barbra Streisand.

Robert – that’s just the thing. FAA isn’t saying they have jurisdiction over the aircraft; the FAA is saying they have jurisdiction over the air *space*.

In this case, for example, Boggs was in complete compliance with FAA regulations that govern the drone itself. The issue is whether Merideth has the right to shoot it down. Boggs is arguing No, because the FAA doesn’t just regulate the aircraft, but the airspace. Merideth is arguing that the airspace above his property is *his* airspace.

And the law is completely unsettled in this area, because we’ve never had to deal with drones that could hover over someone else’s property at varying heights. So it becomes a bit of a sliding scale, reasonable limits, kind of a deal.

If a drone is hovering 50′ overhead, then I can shoot it down, but if it’s at 200′ overhead, I can’t? Who’s to say? We don’t know. But we DO know that whatever limit does get set affects the airspace rights of the property owner, of all property owners.

Privacy and other concerns are valid, but they’re not at issue here.

One way to frame the question, I guess is, suppose a drone is flying over my property 500 feet in the air. It’s not hovering. It’s just traveling across my property. Can I shoot that down? Why or why not? Does it change if the drone is 1,000 feet in the air or 25 feet in the air? (I think it does, but I can’t really explain why….)

The FAA has input on building height near airports and arrival/departure patterns. I’m not aware of the FAA getting into the weeds about antennas, trees, cranes other than to make sure the owners/operators notify the FAA in certain circumstances and follow regulations on lighting.

The FAA is facing a dilemma with the UAS operators creating issues with other aircraft and must make some changes. I don’t think they will rule on trampoline usage.

My lay-person view remains the FAA has to regulate aircraft in the airspace along with towers, cranes, buildings, etc. being properly lit, charted and NOTAM’d.

As far as shooting a firearm at a UAS over private property, local/state laws take precedence and a violation could mean no longer having access to weapons.

In my case, the trees provide a great defense but, should one get in the perimeter, I’ll be using a super-soaker with a 50-100ft range.

The bigger question is this one. Is anyone allowed to discharge a firearm within the city / county limits. in most cases no. That kind of takes care of the answer to a lot of these questions. So get out your slingshot people.

In most rural counties, or even suburban counties here in Texas, you are allowed to shoot on your own property with various restrictions. (E.g., I think you need 10 acres in my county to be able to discharge a firearm, for example. You’re still responsible for any accidents and mishaps, of course.)

And I can’t think of any city/county (other than in slave states) that prohibits discharge of firearms in case of intruders and trespassers, and the drone is an intruder…

We have a nearby ‘neighbor’ who flies his helicopter to the city a couple of time a month. I’d guess he’s less than 1000 ft up when he flies over my house. Other then 20 seconds of minor noise issue, I don’t care. But if an unknown drone was hovering over my house – at any height, I’d likely get out one of our air rifles (high powered pellet gun) and take it down. We’re legally allowed to discharge these devices on our one acre property. Maybe much like an electric fence for pets someone should invent a ‘no-fly zone’ fence that extends upward that civilian drones couldn’t cross.

Imagine how much of a non-issue this would be if people would just have courtesy towards each other. We fly drones for advertising real estate properties as well as capturing stunning scenery. Before each flight we scout the area, inform those in the area of what we are doing, and ask it if would be a problem. Using this common courtesy I can tell you that we’ve never had anyone telling us ‘no’. Most of the time we wind up making a few friends and passing out some business cards.

As of right now it is Mr. Boggs’ legal right to fly his drone over Mr. Meredith’s property. However, I think it’s only a matter of time before bone-headed things like Mr. Bogg’s has done is going to lead to more laws and regulations.

How much of a difference would it have made if Bogg’s had the simple courtesy of informing Mr. Meredith of his intentions? Wouldn’t it have been better to ask Mr. Meredith if he minded having the drone over his property to take a few shots of the scenery?

Rob… If drones are indeed “aircraft” and subject to FAA regulations, then I would think the following FAA regs the “Minimum Safe Altitude” (MSA) would apply as specifically defined in §119 of Part 91 of the Federal Aviation Regulations (FAR): (Note: Other countries use the term “LSALT” or “lowest safe altitude”. Same thing.) The term “AGL” used below is “Above Ground Level”
Anywhere: an altitude allowing a safe emergency landing without undue hazard to person or property on the ground;
Over Congested Areas: an altitude of 1,000 feet above the highest obstacle within a horizontal distance of less than 2,000 feet;
Over Populated Areas: an altitude of 500 feet AGL;
Over Open Water or Sparsely Populated Areas: an altitude allowing for a linear distance greater than 500 feet from any person, vessel, vehicle, or structure;
Helicopters: If without hazard to persons or property on the surface, an altitude lower than in definitions 2, 3, and 4 above, provided in compliance with any routes or altitudes specifically prescribed for helicopters by the FAA.

Agreed, Robert. It’s obvious that Part 91 was written well before the blossoming of RPVs (Remotely Piloted Vehicles for the uninitiated). Will have to check with some of my military buds, but I have to think that those big honking (and armed) RPVs like the Predator that routinely fly internationally from bases in the U.S. are required (at least by military regs, if nothing else) to adhere to the MSA/LSALT standards as if there were a pilot on board – at least on departure and approach over populated areas. It may be that things will come to a head one day only after some entrepreneur starts building drones the size of a Cessna 150 or a Bell Jet Ranger so his customers can cruise the neighborhoods at 50′ AGL.

Shooting the drone down seems pretty drastic and I think it would be difficult to argue that you have a right to do that even if it is over your property. If someone parks their car in your driveway, do you have the right to go out and start destroying their car? Some might argue that you do, and I might even be inclined to agree to an extent – for instance, if you had an emergency and they were blocking you in, you shouldn’t be held responsible if you ram their car to get where you need to go when they weren’t permitted to park there in the first place. However, if you just went out and destroyed their car “for fun” it would seem more than likely the law would side with the car owner even if they were parked on your property.